Citation Nr: 9821755
Decision Date: 07/17/98 Archive Date: 07/23/98
DOCKET NO. 96-34 736 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Manila,
Philippines
THE ISSUES
1. Entitlement to service connection for a heart disorder.
2. Entitlement to service connection for pulmonary
tuberculosis.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
ATTORNEY FOR THE BOARD
C. L. Krasinski, Associate Counsel
INTRODUCTION
The veteran served in active duty from April 1945 to
September 1945.
This matter came before the Board of Veterans' Appeals
(Board) on appeal from rating decisions of the Department of
Veterans Affairs (VA), Manila, Philippines, Regional Office
(RO).
The Board notes that the veteran contends that he was a
prisoner of war (POW). The provisions of 38 C.F.R. § 3.1(y)
(1997) define a former prisoner of war as a person who, while
serving in the active military, naval or air service, was
forcibly detained or interned in the line of duty by an enemy
or foreign government, the agents of either, or a hostile
force, and provides that the VA shall accept the findings of
the appropriate service department that a person was a
prisoner of war during a period of war unless a reasonable
basis exists for questioning it. In the instant case, the
service department has stated that the veteran has no
recognized POW service. Nothing in the record provides a
reasonable basis for questioning the service department
findings. The veteran is advised that the VA is thus bound
by that determination. See Duro v. Derwinski, 2 Vet. App.
530 (1992). Therefore, the presumptive provisions pertinent
to POWs in 38 C.F.R. § 3.309 (1997) are not applicable in
this case.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran asserts that the RO committed error in denying
his claim for entitlement to service connection for a heart
disorder and pulmonary tuberculosis (PTB). He contends, in
essence, that he incurred such disabilities in service.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1998), has reviewed and considered
all of the evidence and material of record in the appellant's
claims files. Based on its review of the relevant evidence
in this matter, and for the following reasons and bases, it
is the decision of the Board that the veteran has not met the
initial burden of submitting a well grounded claim for
entitlement to service connection for a heart disorder and
PTB.
FINDING OF FACT
1. The veteran’s heart disorder was initially demonstrated
many years after service, and competent evidence tending to
link the disability to service has not been presented.
2. The veteran’s PTB was initially demonstrated many years
after service, and competent evidence tending to link the
disability to service has not been presented.
CONCLUSIONS OF LAW
1. The claim for entitlement to service connection for a
heart disorder is not well-grounded. 38 U.S.C.A. § 5107
(West 1991).
2. The claim for entitlement to service connection for PTB
is not well-grounded. 38 U.S.C.A. § 5107 (West 1991).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
In order to establish service connection, the facts, as shown
by evidence, must demonstrate that a disease or injury
resulting in current disability was incurred during service
or, if pre-existing active service, was aggravated therein.
38 U.S.C.A. § 1110 (West 1991).
For the showing of chronic disease in service, there is
required a combination of manifestations sufficient to
identify the disease entity, and sufficient observation to
establish chronicity at the time, as distinguished from
merely isolated findings or a diagnosis including the word
"Chronic." When the disease identity is established, there
is no requirement of evidentiary showing of continuity.
Continuity of symptomatology is required only where the
condition noted during service is not, in fact, shown to be
chronic or where the diagnosis of chronicity may be
legitimately questioned. When the fact of chronicity in
service is not adequately supported, then a showing of
continuity after discharge is required to support the claim.
38 C.F.R. § 3.303(b) (1997).
Service connection may also be granted for a disability
initially diagnosed after service when shown to be related to
service. 38 C.F.R. § 3.303(d) (1997).
Where the veteran served continuously for ninety (90) or more
days during a period of war, and if cardiovascular disease
became manifest to a degree of 10 percent or more within one
year from the date of the veteran's termination of such
service, such disease shall be presumed to have been incurred
in service, even though there is no evidence of such disease
during the period of service. 38 U.S.C.A. §§ 1101, 1112
(West 1991 and Supp. 1998); 38 C.F.R. §§ 3.307, 3.309 (1997).
In addition, where a veteran served continuously for ninety
(90) days or more during a period of war, and if tuberculosis
became manifest to a degree of 10 percent or more within
three years from the date of the veteran's termination of
such service, such disease shall be presumed to have been
incurred in service, even though there is no evidence of such
disease during the period of service. 38 U.S.C.A. §§ 1101,
1112; 38 C.F.R. §§ 3.307, 3.309. Evidence of activity on
comparative study of X-ray films showing pulmonary
tuberculosis within the three-year presumptive period
provided by 38 C.F.R. § 3.307 (a)(3) will be taken as
establishing service connection for active pulmonary
tuberculosis subsequently diagnosed by approved methods. 38
C.F.R. § 3.371 (1997).
A veteran claiming entitlement to VA benefits has the burden
of submitting evidence sufficient to justify a belief by a
fair and impartial individual that the claim is well-
grounded. 38 U.S.C.A. § 5107(a) (West 1991). The Court of
Veterans Appeals (the Court) has defined “well-grounded
claim" as a "plausible claim, one which is meritorious on its
own or capable of substantiation."
Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). Such a claim
need not be conclusive, but only possible to satisfy the
initial burden of 38 U.S.C.A. § 5107(a). Id. A claim must
be more than just an allegation; a claimant must submit
supporting evidence. Tirpak v. Derwinski, 2 Vet.
App. 609, 611 (1992). If a claim is not well-grounded, the
Board does not have jurisdiction to adjudicate the claim.
Boeck v. Brown, 6 Vet. App. 14 (1993). A not well-grounded
claim must be denied. Edenfield v. Brown, 8 Vet. App. 384
(1995). If the initial burden of presenting evidence of a
well-grounded claim is not met, the VA does not have a duty
to assist the appellant further in the development of the
claim. 38 U.S.C.A. § 5107(a); Murphy, 1 Vet. App. at 81-82.
The Court has emphasized that in order for a claim to be well
grounded, there must be competent evidence of current
disability in the form of a medical diagnosis, of incurrence
or aggravation of a disease or injury in service in the form
of lay or medical evidence, and of a nexus between the in-
service injury or disease and the current disability in the
form of medical evidence. Caluza v. Brown, 7 Vet. App. 498,
506 (1995). Where the determinant issue involves a question
of medical diagnosis or medical causation, competent medical
evidence to the effect that the claim is plausible or
possible is required to establish a well-grounded claim.
Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Lay
assertions of medical causation cannot constitute evidence to
render a claim well grounded under 38 U.S.C.A. §5107(a); if
no cognizable evidence is submitted to support a claim, the
claim cannot be well grounded. Id.
Heart Disorder
There is competent evidence showing that the veteran
currently has a heart disorder. A July 1990 Medical
Examination of Applicants for United States Visas indicates
that the veteran had hypertension controlled by Methyldopa.
A May 1993 VA treatment record reveals that the veteran had
poorly controlled hypertension. A July 1997 medical record
from the P. Hospital reflects a diagnosis of unstable angina.
A July 1997 P. Hospital operation report for a left heart
catheterization and bilateral selective coronary
arteriography reveals that the veteran has a history of
arteriosclerotic heart disease and status post myocardial
infarction two years ago.
There is no evidence that the veteran incurred a heart
disorder in service. A July 1946 separation examination
report reveals that examination of the veteran’s
cardiovascular system was normal. The report is silent for
complaints or diagnosis of a heart disorder. An Affidavit
for Philippine Army Personnel, dated in July 1946, reveals
that the veteran did not incur any wounds or illnesses in
service. There is no evidence of record showing that a heart
disorder manifested within one year of the veteran’s
separation from service.
The veteran has not submitted competent evidence establishing
a nexus between his current heart disorder and his period of
service. The medical records associated with the claims
folder do not medically link the heart disorder to service.
Although the veteran contends that he incurred a heart
disorder in service, lay assertions of medical causation
cannot constitute evidence to render a claim well grounded
under 38 U.S.C.A. §5107(a); if no cognizable evidence is
submitted to support a claim, the claim cannot be well
grounded. See Grottveit v. Brown, 5 Vet. App. at 93. The
veteran has not submitted any other medical opinion to
support his claim.
Accordingly, as there is no competent evidence that medically
relates the veteran’s heart disorder to service, the claim is
implausible and not well-grounded. Therefore, as a matter of
law, the claim must be denied. 38 U.S.C.A. § 5107(a).
Pulmonary Tuberculosis
There is evidence showing that the veteran currently has PTB.
A July 1990 Medical Examination of Applicants for United
States Visas indicates that the veteran had PTB, activity
undetermined.
There is no evidence that the veteran incurred a PTB in
service. A July 1946 separation examination report indicates
that the X-ray examination of the veteran’s chest was normal.
The report is silent for complaints or diagnosis of PTB. An
Affidavit for Philippine Army Personnel, dated in July 1946,
reveals that the veteran did not incur any wounds or
illnesses in service. There is no evidence of record showing
that PTB manifested within three years of the veteran’s
separation from service.
The veteran has not submitted competent evidence establishing
a nexus between his current PTB and his period of service.
The medical records associated with the claims folder do not
medically link the PTB to service. Although the veteran
contends that he incurred PTB in service, lay assertions of
medical causation cannot constitute evidence to render a
claim well grounded under 38 U.S.C.A. §5107(a); if no
cognizable evidence is submitted to support a claim, the
claim cannot be well grounded. See Grottveit v. Brown,
5 Vet. App. at 93. The veteran has not submitted any other
medical opinion to support his claim.
Accordingly, as there is no competent evidence that medically
relates the veteran’s PTB to service, the claim is
implausible and not well-grounded. Therefore, as a matter of
law, the claim must be denied. 38 U.S.C.A. § 5107(a).
ORDER
Entitlement to service connection for a heart disorder and
PTB is denied.
THOMAS J. DANNAHER
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1998), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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